290 F.3d 303 (5th Cir. 2002), 01-30131, Terrebonne Parish School Bd. v. Columbia Gulf Transmission Co.

Docket Nº:01-30131
Citation:290 F.3d 303
Party Name:Terrebonne Parish School Bd. v. Columbia Gulf Transmission Co.
Case Date:May 10, 2002
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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290 F.3d 303 (5th Cir. 2002)



COLUMBIA GULF TRANSMISSION CO. and Koch Gateway Pipeline Co., Defendants-Appellees.

No. 01-30131.

United States Court of Appeals, Fifth Circuit

May 10, 2002

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Andrew J. Gray, III (argued), Wade Thomas Visconte, The Gray Law Firm, Lake Charles, LA, Michael X. St. Martin, Joseph G. Jevic, St. Martin & Williams, Houma, LA, for Plaintiff-Appellant.

Thomas R. Blum (argued), Christina H. Belew, James A. Burton, Simon, Peragine, Smith & Redfearn, New Orleans, LA, for Columbia Gulf Transmission Co.

Robert J. Young, III, Robert J. Young, Jr. (argued), Young, Richaud & Myers, New Orleans, LA, for Koch Gateway Pipeline Co.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before DUHE, WIENER, and BARKSDALE, Circuit Judges.

WIENER, Circuit Judge:

Plaintiff-Appellant the Terrebonne Parish School Board (the "Board"), as owner of a servient estate, appeals from the district court's summary judgment that the Board's causes of action against the two owners of separate dominant estates—Defendants-Appellees Koch Gateway Pipeline Company ("Koch") and Columbia Gulf Transmission Company ("Columbia")—have prescribed. Concluding that genuine issues of material fact exist with regard to prescription of the Board's possible causes of action under Louisiana's law of delict (tort) and contract, we reverse the district court's grant of summary judgment and remand.



Shortly after Louisiana gained statehood, Congress extended to Louisiana a policy of reserving, from among the public lands in newly created states, the sixteenth section of every township for the support of education.1 This policy created a patchwork of reserved section sixteen lands ("sections sixteen") throughout each such state, as a result of uniform surveying according to the township-and-range system. (A township is six miles square and contains thirty-six sections, which are one mile square; thus each section sixteen is five miles distant from the nearest other sections sixteen, one in each of the four contiguous townships.)

Title to sections sixteen in Terrebonne Parish passed from the United States to the Board sometime during the nineteenth century.2 The Board-owned section sixteen that is located in Township 18 South, Range 13 East, Terrebonne Parish, Louisiana, and which contains about 641 acres, is the subject of this case and is hereafter referred to as "Section 16 (18-13)."

Before the events at issue here, much of Terrebonne Parish, including Section 16

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(18-13), consisted of floating freshwater marsh. Typically, this kind of marsh comprises "marsh mats" that are as much as a foot thick and literally float several feet above the silt and clay bottom, unattached by roots.

Section 16 (18-13) is now traversed by two pipelines that exist pursuant to conventional (contractual) servitude agreements granted by the Board. The first was constructed pursuant to a "standard form" agreement executed by the Board in 1957 in favor of Koch's ancestor in interest. This servitude agreement (the "Koch Agreement") reads in part as follows:

That for and in consideration of THREE HUNDRED SIXTY SIX AND 60/100 ($366.60) Dollars . . . Grantor does hereby Grant and Convey unto United Gas Pipeline Company . . . a right of way and easement one hundred feet in width to construct, maintain, operate, repair, replace, change the size of and remove pipe lines and appurtenances thereto, including the right at its election to lay such pipe line or lines in open ditches or canals not to exceed forty feet in width, which may be filled in or left open at the option of Grantee. . . .

. . .

TO HAVE AND TO HOLD unto Grantee, its successors and assigns, so long as the rights and easements herein granted, or any of them, shall be used by, or useful to Grantee for the purposes herein granted, with ingress to and egress from the premises, . . . for the purposes of construction, inspecting, repairing and replacing the property of Grantee herein described. . . .

. . .

[S]aid Grantor shall not obstruct or permit to be constructed any house, structures or obstructions, on or over, or that will interfere with the maintenance or operation of, any pipe line or appurtenances constructed hereunder, and will not change the grade over such pipe line.

Koch's pipeline canal was dredged and its pipeline built in 1958.

In 1964, Columbia entered into negotiations with the Board to build the second pipeline across Section 16 (18-13). During negotiations, however, Columbia built its pipeline. When, in 1965, this trespass was discovered by the Board, it and Columbia negotiated a servitude agreement using a somewhat different standard form (the "Columbia Agreement"). In return for $685.20, the Board granted Columbia

a servitude, right of way and easement to construct, lay, maintain, operate, alter, repair, remove, change the size of, and replace a pipe line and appurtenances thereto, including but not limited to fittings, tie-overs, valves, corrosion control equipment and other apparatus. . . .

. . .

[S]aid Grantors shall not construct nor permit to be constructed any house, structures, or obstructions and shall not plant nor permit to be planted trees on or over, or that will interfere with the construction, maintenance or operation of any pipe line or appurtenances constructed hereunder, and will not change the grade over such pipe line.

The right of way granted herein shall be 100 feet wide. . . . It is understood and agreed that Grantee shall not be required to backfill the open flotation ditch excavated during construction.

It is hereby understood that the Grantee, its successors and assigns, shall not be obligated to pay Grantors or any subsequent owner of [Section 16 (18-13) ] any damages resulting from the construction of the [pipeline], such damages having been anticipated and paid in

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advance at the time of execution of this instrument.

Koch and Columbia have continuously maintained the pipelines, often using the canals to do so. Both concede, however, that they have not maintained the canals or their banks.

The Board contends that, at least partly as a result of the servitude holders' failure to maintain the canals or their banks, the canals have widened and their banks have been breached. The Board asserts that the Koch canal has widened to an average width of 70 feet, almost double the 40-foot limit specified in the Koch Agreement; and that the Columbia canal has widened beyond the specified 100-foot right of way, to an average width of 135 feet. Koch and Columbia (collectively, "the defendants") object that there is no record evidence for these statistics, but a scaled satellite photo tends to support the Board's assertion. There is also causation evidence suggesting that breaches in the canals' banks have exposed the floating marsh to tidal surges, which have washed away, and continue to wash away, the light organic soil necessary for the marsh mats to cohere. The record suggests that this erosion may occur slowly—and vertically—from the water bottom up, causing the marsh mats to thin out and eventually disappear. Now, argues the Board, where there was once healthy marsh, there is open water.

The Board sued several entities that operated on its sections sixteen, filing the instant action in state court in October 1999 against Columbia and Koch jointly, and seeking either the physical restoration of Section 16 (18-13) or compensatory damages. The Board's petition contains explicit tort and contract claims, the latter including an innominate property argument.3 The defendants removed to the Eastern District of Louisiana and later moved for summary judgment.

The district court granted summary judgment to the defendants. It held, in contract, that the servitude agreements did not require Columbia and Koch to continue to maintain the canals' banks; therefore any contractual claim had prescribed. In tort, the district court reasoned that failure to maintain a canal is not conduct that can support a claim under a continuing tort theory. The district court also held that the Board's "failure to hire an expert or investigate the erosion at the time it became aware of the damage does not prevent prescription from commencing." Apparently viewing the defendants' liability as arising out of discontinuous violations, the court held that prescription of the Board's delictual (tort) claims began to run when it learned of the damage to various of its sections sixteen. As the Board "was aware of the erosion of Section 16 in or before 1985," the district court reasoned, it cannot now maintain an action with respect to Section 16 (18-13). This timely appeal followed.



Even though the district court approached this case as largely implicating tort claims, it actually involves equal or greater questions of contract and property rights. To review the district court's ruling, we must consider procedural and delictual issues, but the Louisiana law that

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governs this case is chiefly the civil law of servitudes—a mixture of contract interpretation and suppletive (gap-filling) rules of property law.

A. Standard of Review

The Board appeals from summary judgment, which the district court characterized as turning on prescription. We review a grant of summary judgment de novo, applying the same standard as the district court.4 A motion for summary judgment is properly granted only if there is no genuine issue as to any material fact and the...

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